Social Housing Speed Read – Disability discrimination in pursuit of a legitimate aim

The Claimant suffered from schizo-affective disorder and paranoid schizophrenia and lived in accommodation which provided for such difficulties.

The first assault occurred in 2016. As a result, the trust began possession proceedings however soon decided to change their tack and instead worked with the NHS to seek alternative accommodation for the individual. The process was not straightforward however as the parents of the Claimant did not deem the alternative accommodation suggested to be suitable.

The Claimant remained in the property but in 2018, exposed himself to a female resident in his building. This was followed by a further assault on another employee of the Trust. The incidents were clearly linked to the mental health disorders the Claimant had, but the trust felt compelled to take action by way of protection of its staff and other residents. A possession order was considered.

The trust proceeded to commission an Equality Act 2010 assessment in order to weigh up the potential impact on the Claimant, taking his difficulties into account. Its Public Sector Equality Duty (PSED) was also a concern for the trust. The assessment found in favour of the eviction and the trust took action on this basis.

Subsequent to the Trust’s decision to seek possession (provided that alternative accommodation could be found), they received a report from the Claimant’s doctor declaring his lack of capacity. The Trust did not directly act upon this information and carried out no further assessments but, despite this, their response was deemed proportionate to a legitimate aim.

Although the court’s decision fell in the Trust’s favour, it was found that the Trust’s decision to seek possession amounted to less favourable treatment of the Claimant because its actions directly correlated to behaviour caused by a disability. Further, the Trust’s failure to conduct additional assessments upon receipt of the medical report constituted a breach of its PSED. However, the Trust’s manager rectified this breach whilst giving oral evidence when he stated that, in his view, the action to seek possession was still reasonable and proportionate in light of the medical report.

The fact that the Trust’s staff and the Claimant’s fellow residents were at real physical risk ensured that the notion of proportionality was satisfied. Further, the trust had the precondition to their action that suitable alternative accommodation must be available before an eviction could take place. When faced with disabled tenants, all housing providers should ensure that they consider the wider picture and take proportionality and reasonableness into account before taking action. It is imperative that all decisions made are balanced, and that all possible practical resolutions are taken into account before possession proceedings are sought.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.